“Using A Checklist for Witness Preparation”

James Publishing Company’s website includes excerpts of certain of its books. Here is an excerpt from Section 433 of "How to Prepare for, Take and Use a Deposition" by Daniel P. Dain.

§433 Using a Checklist for Witness Preparation

Some lawyers prefer to go through an extensive checklist of points for discussion with their witness. One benefit of using this approach is that it provides some assurance that you will not leave out an important point. One of the problems with this approach, and with any approach, is that your witness is only likely to recall and put into use a very few points. Whatever approach you choose, make sure that your emphasis is on your most important points because the others may fall by the wayside.

Consider discussing the following admonitions with your witness:

Listen to the question. If you didn’t hear it, ask that it be ­repeated.

Understand exactly what the question is. If you don’t understand, ask that the question be rephrased.

Think about the question. Pause before you answer.

Answer only the question and answer concisely—don’t volunteer. Your role is to answer only the question asked, not to volunteer what you think the examiner wants to know.

Don’t guess or speculate. If you do not know the answer, the only truthful answer is “I do not know.”

Answer only as to facts of which you have personal knowledge, unless asked for information given to you by other persons.

If necessary, qualify your answer (“I am not totally certain.”).

Ask for documents, if it would make testimony more accurate.

Read carefully all documents given to you. Take your time.

Do not get angry. Some lawyers try to cause you to lose your temper in the hope that you will not think clearly and will make incorrect statements.

Do not feel you need to memorize any facts.

Do not take any notes or documents to the deposition. Anything you take may be subject to discovery.

Set your own pace—don’t let the speed of the examiner’s questions dictate the speed of your answers.

Listen to objections—they may tell you why the question is tricky.

Make each question and answer stand alone. If read out of context at trial, it should convey accurately your intended testimony.

Do not testify as to what you assume occurred—only what you know occurred.

Do not be reluctant to admit that you have discussed your deposition with a lawyer—there is nothing improper about that.

Don’t try to hide embarrassing facts. If asked if you were fired, and you were, answer yes.

A document says what it says—not what the examiner says that it says.

Do not discuss the facts of your anticipated testimony with anyone else; it may create confusion as to what you know and what you have been told, and the discussions may be discoverable.

Answer audibly, and not with nods or shakes of your head.

Straighten out confusion.

Give accurate estimates (time, speed, distance).

Clarify multiple meanings. Beware of a question that assumes a fact. Watch out for alternative questions.

Don’t chew gum.

Don’t be defensive.

Don’t lose your temper.

Be courteous.

Avoid wisecracking and joking.

Don’t be reluctant to admit to discussions with your lawyer.

Don’t answer questions about managing the lawsuit.

Beware of the “have you told me everything” question.

Tell the truth.

If this “long list” of rules is to have any meaningful impact on the witness, most of them need to be illustrated, and then practiced by the witness under sample questioning. Remember, however, most witnesses cannot and many should not attempt to remember more than a few key rules.